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June 9, 2009 -- Naples Daily News (FL)

Supreme Court Won't Hear Case Of Naples Doctor Convicted Of Illegally Prescribing Pain Killers

By Liz Freeman

Return to Drug War News: Don't Miss Archive

NAPLES -- The U.S. Supreme Court declined to review a case of a Naples doctor convicted and sentenced last year for illegally dispensing pain medications.

The decision lets stand a conviction that a pain relief organization says harms the rights of doctors and patients alike and oversteps states' rights.

"It's a sad day for America because it puts pain doctors on such notice and legitimate pain patients will have a difficult time getting treatment," said Laura Cooper, general counsel for the Pain Relief Network, a national group that advocates for the rights of pain patients and doctors.

The case involves Sharon Johnston, a doctor of osteopathic medicine in Naples. She was sentenced to 30 months in prison last year by U.S. District Court Judge John E. Steele following a three-day trial last summer in Fort Myers federal court.

A federal jury found Johnston guilty on four counts of criminally dispensing controlled substances after undercover agents posed as patients seeking pain medications at her practice, then located at 599 U.S. 41, Suite 307.

Johnston began serving her sentence July 30 and is incarcerated at Coleman federal prison near Orlando. She is due to be released next May. Johnston turns 45 today.

Cooper, a Eugene, Ore.-based attorney for the pain group, said Johnston's conviction was a debacle because the federal government overstepped states' Tenth Amendment right to regulate the practice of medicine. Johnston was convicted under the Controlled Substances Act for prescribing medications outside the course of a professional practice.

"Essentially the issue is the judge instructed the jury to apply a national standard of care that does not exist," she said. "States define acceptable standards of care."

The conviction in federal court poses a threat to states' control over the practice of medicine and means doctors can be jailed by drug agents if the agent disagrees with a physician's practice, Cooper said.

Rather than arresting Johnston and putting her on trial, Cooper said the federal government should have gone to the state Board of Medicine to let the board decide whether she was practicing outside the scope of an acceptable medical practice and take action against her license. That's why state medical boards have a panel of physicians because they know the standard of care.

"If a doctor practices bad medicine, you take their license away," she said. "( This ) turns a federal jury into a state medical board."

Assistant U.S. Attorney Doug Molloy, the prosecutor at Johnston's trial, could not be reached for comment.

Johnston's sister, Nancy Johnston, of Clearwater, said the case from the start has been a great injustice because of the states'-right issue and because undercover agents involved lied and at least one of the agents admitted on the stand that he lied.

"I have the tapes of what went on in the exams," she said.

"You can't have the government telling doctors what they can and cannot prescribe," Johnston said. "Three agents come in with fake Blue Cross cards and what was she supposed to do? Does every doctor have to think that their patients are lying?"

The pain relief group says the federal government has charged about 400 doctors for violating federal drug dealing laws within the context of their medical practice.

Naples police and the Drug Enforcement Administration began investigating Johnston after being told she was prescribing painkillers to patients after cursory examinations. Three undercover agents posed as patients in June and August in 2007, complaining of back or neck pain and received prescriptions for oxycodone, methadone and other controlled substances. She was indicted by a federal grand jury of illegally dispensing pain medication and was arrested at her practice in August 2007.

Johnston's Miami attorney Joel Hirschhorn argued during her trial that the undercover agents manipulated Johnston and that they filled out patient information forms and she relied on them telling her the truth. He also argued the government's case was full of holes because a recording device to tape their office visits with Johnston was started and stopped a dozen times.

Johnston appealed her conviction to the U.S. Court of Appeals for the Eleventh Circuit in Atlanta. The appellate court affirmed her conviction.

Cooper, the general counsel for the pain relief group, said the appellate court decision was based on a rule that Johnston could not take advantage of an error that was prompted or "invited" by her trial attorney.

Cooper said she received notice Monday that the Supreme Court will not review the case and the court is not required to provide a basis for its decision. She was not surprised because the high court takes so few cases but she was disappointed by the decision

She doesn't know if she will represent Johnston in a future appeal, which could be for ineffective counsel at her trial.

"I don't know what the grounds will be but that is one of the things that comes to mind," she said.

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